A repellant for tyrants: Part I

Why the constitutional separation of powers is important

Most liberty advocates are quite familiar with Lord Acton's proclamation that "Power tends to corrupt, and absolute power corrupts, absolutely." And though America's founders pre-dated Lord Acton, this concept was not lost on them when they considered the separation of powers.

"There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," wrote James Madison in Federalist 47, quoting Montesquieu. "Or," Madison continued, still quoting, "if the power of judging be not separated from the legislative and executive powers...."

Indeed, Montesquieu, writes political scientist Donald Lutz, was the most frequently quoted authority on government and politics in colonial pre-revolutionary British America — cited by the American founders more than any source except the Bible.

Constitutional scholar George W. Carey of Georgetown University — a noted expert in U.S. political theory — argues that the separation of powers is, in many respects, the most important of our constitutional principles, and beyond question, the most misunderstood.

According to Carey, most students of the American system have accepted the proposition that "separation of powers was intentionally fused into our system to thwart majority rule in one way or another." He takes great exception to this notion, believing instead that the Framers "infused" the separation of powers into the U.S. Constitution as a safeguard against tyranny.

A review of the Framers' writings substantiates this.

"The accumulation of all powers, legislative, executive, and judiciary," wrote Madison, "in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty," he asserted.

Thomas Jefferson, too, agreed that the concentration of powers leads to despotism.

Jefferson openly criticized the Virginia Constitution of 1776 precisely because the powers of government were concentrated, rather than separated. Both of Jefferson's written drafts of the Virginia Constitution (1776 and 1783) contained specific provisions for the separation of powers.

There is more than this circumstantial evidence that Jefferson saw a link between the concentration of powers and despotism. When "all the power of government, legislative, executive, and judiciary, result to the legislative body," he wrote, "the concentrating of these in the same hands is precisely the definition of despotic government."

"It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one."

This quote of Jefferson raises two points warranting further discussion. First, concentration of power in the legislature was thought, at the time, to be extremely likely but particularly dangerous. As such, the Framers followed a policy of weakening the strong (Congress) and strengthening the weak (the President and the Court), a policy that, today, is labeled "checks and balances." For example, as part of the strengthening process, they gave the President a qualified veto and provided judges with life tenure during good behavior. To weaken Congress, they divided it.

The goal, in sum, was to minimize the threat of tyranny and avoid arbitrary and capricious rule by government.

Second, and just as important, Jefferson thought the danger of concentrated power would be just as dangerous even if a "plurality of hands" exercised those powers. Imagine the danger Jefferson would have foreseen if, as we often see today in Nevada, the same "hands" (connected to the same body) were occupying posts in more than one branch simultaneously.

It warrants serious concern when the same individual occupies governmental posts in more than one branch of government. Historically, other circumventions of the separation-of-powers doctrine have also resulted in dangerously tyrannical, arbitrary and capricious actions by government.

Newspaperman Frank E. Gannet identified one such attempt in a scathing open letter issued in February of 1937, criticizing President Franklin D. Roosevelt's failed court-packing scheme. When the high Court repeatedly struck down New Deal legislation as unconstitutional (an important check), Roosevelt attempted to circumvent the separation of powers by threatening to place six additional justices (more of his liking and political ilk) on the high Court. If Roosevelt's scheme had been successful, the new court majority would have thus blurred the lines between not just two but all three branches.

Another dangerous circumvention that gave huge new powers to the executive branch was the creation of administrative agencies — providing ample evidence of the imminent dangers to liberty produced when rulemaking (legislative), enforcement (executive) and administrative-law judging (judicial) entities all operate under one federal department's politically appointed secretary.

This advent of "expert"-led administrative agencies, in the wake of the Progressive Era, has meant not only a vast expansion of the federal government, but also a significant increase in its arbitrary and capricious actions.

Joseph Becker is chief legal officer and director of the Center for Justice and Constitutional Litigation at the Nevada Policy Research Institute. For more visit http://justice.npri.org/ and http://npri.org.